So apparently the makers of Candy Crush are actually trying to trademark the word "candy" by buying up older games which also have the word "Candy" in the name and then suing anyone that uses the word "candy" in a game.

The cost of the legal defence is as much as 1.5 mil, which is no doubt why the trolls have chosen this strategy. This seems like a really stupid overreach though (even by patent troll standards). Now that there's publicity of any sort, I can't see Carolla not raising the funds. Podcasts are not a personal issue, they're commercial. Literally every company that has an employee doing an official or sanctioned podcast of any kind is interested in stopping this. Hell the suit itself also names NBC, CBS, and HowStuffWorks.com (which is owned by the Discovery Channel) among others as ancillary defendants.

I would not rule out seriously punitive damages if the plaintiffs lose and the judge feels spicy. Granted that's a lot of ifs and several years of legal nonsense away, but this just seems like a really bad bet for the trolls to make. I guess they got gold fever?

It's not all sunshine and roses given that the patent trolls have managed to prevent the Senate from doing shit to stop them (preventing the Senate from doing shit is not a difficult task, mind), but now the risk assessment of frivolous patent claims is shifting. Hopefully stuff like this and the continuing travails of Prenda will make patent owners actually consider whether they have a legal case before they try to shake people down.

That is, to infringe a process patent, all the steps in the process must be infringed, by the same party. So a company that duplicates some of the steps of a process, and tells its end users how to duplicate the remaining steps, is not infringing.

The article's written for people who aren't already familiar with the case (and don't mind being interrupted by an obnoxious fucking photo link after every third paragraph) but it's worth reading. There are several excerpts from a brief by Mark Evanier because of course there are, and the full brief is embedded at the bottom of the article, along with one by Bruce Lehman, former director of the USPTO.

That said, when Kirby's dispute was decided by the 2nd Circuit, the judges there applied what is known as the "instance and expense" test, or what happens when the "employer induces the creation of the work and has the right to direct and supervise the manner in which the work is carried out." The appeals court pointed out that what Kirby had been working on was "hardly self-directed projects" and that the flat rate he enjoyed from Marvel, was enough to conclude that his works were created at Marvel's instance and expense.

Lehman attacks the conclusion, not only citing Kirby's independence during the time he contributed materials to his primary client, but also because he thinks the 2nd Circuit disregarded legislative history on the meaning of the term "employer," ignored the Supreme Court's canon of statutory interpretation, and in particular, disregarded Supreme Court Justice Thurgood Marshall's 1989 decision in CCNV v. Reid. That opinion dealt with a commissioned work of sculptural art and whether it could be considered a work-made-for-hire when the commissioning party played a big role in its creation. According to Lehman's interpretation of the CCNV opinion, "Justice Marshall rejected the Second Circuit’s 'instance and expense' test and endorsed the D.C. Circuit’s approach, concluding that 'the term ‘employee’ should be understood in light of the general common law of agency.'”

The brief expresses the feeling that the 2nd Circuit disregarded CCNV because the appeals court was attempting to apply the relevant law (the 1909 Copyright Act) and its then-interpretation during the time that Kirby worked, but Lehman believes the 2nd Circuit had a poor understanding of history.

"The court of appeal’s analysis conflicts with Justice Marshal’s analysis of the work for hire doctrine under the 1909 Act," he writes. "Jack Kirby’s works at issue fell into the category of 'commissioned works' which Justice Marshall concluded were 'convey[ed],' i.e., assigned. Furthermore, all of the evidence available to the lower courts supported that Kirby 'convey[ed] the copyright' to Marvel, not that Marvel owned Kirby’s work at creation. That is precisely the circumstance 17 U.S.C. § 304 is intended to address by giving authors or their statutory heirs the opportunity to terminate such copyright transfers."He adds that the 2nd Circuit's "misinterpretation" would result in unfairly stripping freelance artists of their termination rights and provides an "unintended and unwarranted windfall to publishers."

No guarantee the Supreme Court will take it. But nice to see it's not over.

Has anyone ever been sued solely for solicitation of trademark or copyright infringement?

Which is to say, not the purchase of counterfeit good, or the download of copyright movies, but merely asking someone "Hey can anyone send me a torrent of Photoshop?" or something equally ill-advised.

I mean for obvious reasons, that's usually a stupid thing to do. But I'm just wondering if it's actually an offence in any way or if someone could be sued for that? I don't have any real concern, I'm mostly curious about the nominal legality of it and couldn't find any answers via Google.

It came up because I was asking around for someone to make me some high-quality printed Magic proxies*, in a group where I know folks have has stuff done and people started freaking out like WIZARDS WILL GET YOU! Now, leaving aside the hilariously absurd idea of Wizards of the Coast sending an online persona a cease-and-desist for ASKING about proxies, I DID start wondering about the nominal legality of my request.

I know it IS an obviously bad idea for someone to reply "OH YEAH, HEY I MAKE FAKE CARDS", but I mean, that's what PMs or emails are for.

*Nothing outright countefeit, just stuff like power proxies with the really nice Magic Online art to use for deck swapping, etc. We already have ridiculous collections of real cards many times over, including two sets of power 9.

beatbandito wrote:This may just be internet rumor, but I'm pretty sure it's only illegal to make the files available. Even the download of a torrent is fine as long as you don't have sharing turned on.

Don't give anything approaching legal advice based off of seeming common sense.

http://thompsonhall.com/copyright-infringement-tips-for-illegal-movie-music-download-cases/ wrote:I was recently asked whether it is possible for a copyright owner to sue someone for distributing a movie when all he did was download it with torrent software. The answer is yes. The nature of torrents is that you are sharing parts of the file while you download even though you are not seeding it. Thus, they can sue you for sharing a movie even though you have not seeded it.

https://www.techdirt.com/articles/20120321/12073218187/mpaa-asks-megaupload-data-to-be-retained-so-it-can-sue-users-then-insists-it-didnt-really-mean-that.shtml wrote:This would include, but is not limited to, all information identifying or otherwise related to the content files uploaded to, stored on and/or downloaded from Megaupload; all data associated with those content files, the uploading or downloading of those files, and the Megaupload users who uploaded or downloaded those files

Interesting. That's different from Canada where only the upload is illegal (as I mentioned above). This came about because for many years we had a subsidy charge on all recordable media as a supposed compensation tool (though there may have been other precedents before, which led to that system in the first place). Now it's just precedent.

However, to come back to the original question, what about solicitation? Asking "Hay u guyz kin sumbuddy send me a cracked copy of Windoze?" may be stupid, but is it illegal?

Aereo argued that it wasn't like a cable system because it was simply renting equipment to customers. Each customer had their own dime-sized antenna and their own DVR storage space.

The six-justice majority believed that Congress specifically ruled out such an argument. Before cable was widespread, Community Antenna Television (CATV) systems, which simply re-broadcast programs into areas with poor reception, were found legal by the Supreme Court. When Congress amended copyright law in 1976, it made clear that the community antenna systems were having a "public performance" because they "both show the program's images and make audible the program's sounds."

The majority sees Aereo's activities as being "substantially similar to those of the CATV companies." That's true even though those systems transmitted constantly, whereas Aereo's system only is activated when a subscriber wants to see a program. (That argument had some impact on the three dissenters.)